JUDGMENT : 1.This criminal appeal under Section 374(2) of the Code of Criminal Procedure hasbeen filed being aggrieved by the judgment, finding and sentence dated10.01.1994 passed by Sessions Judge, Damoh inSessions Trial No. 130/92, whereby the appellant No. 1 Lalpuri Goswami has been convicted under Section 304-B,I.P.C. and sentenced to R.I. for 10 years and appellant No. 2 Nanhepuri Goswami has beenconvicted under Section 498-A, I.P.C. and sentenced to R.I. for one year withfine of Rs . 5,000/-, in default of payment of fineS.I. for three months. 2.Prosecution ease in short is that appellant Lalpuri Goswami informed Police Nohta that he is Nandirakshak in the office of ArtificialInsemination in Sub Center , Mausipura and resides in the same village in rentedhouse with his wife Malti Bai Goswami . On 21.02.1992 he had gone to do his duty. Atabout 6.00 p.m. when he returned therefrom he found that the door of his house was bolted from inside. He saw fromwindow that his wife had died by hanging. His wife was suffering from abdominalpain and the possibility is that she might have committed suicide for the samereason. On this information marg intimation No. 4/92was registered at Police Station, Nohta and theinquiry was made. Panchnama of dead body of Maltibai was prepared. Her dead body was sent forpostmortem examination to Civil Hospital , Damoh where the post mortem examination was done byDr. K.C. Singhai (PW-3) and Dr. J.P. Pasari (PW-7). According to their opinion, the cause ofdeath was asphyxia due to hanging. Viscera and other articles were seized. Somemedicines which were found in the room were also seized. Map was prepared.Letters written by appellant No. 1 Lalpuri Goswami were seized. Statements of the witnesses wererecorded. After inquiry, it was found that Maltibai Goswami was subjected to cruelty in connection with thedemand of dowry, therefore, she committed suicide within 7 years of hermarriage, therefore , the Crime No. 61/92 under Section304B/34 of I.P.C. was registered. After completing the usual investigation,charge sheet was filed in the Court of J.M.F.C. Damoh who committed the case to the Sessions Court for trial. 3.Accused persons were charged under Section 304-B of I.P.C. They denied theguilt and claimed to be tried mainly contending that they have been falselyimplicated. Prosecution examined as many as 10 witnesses and appellants alsoexamined one witness. After completing the usual investigation,charge sheet was filed in the Court of J.M.F.C. Damoh who committed the case to the Sessions Court for trial. 3.Accused persons were charged under Section 304-B of I.P.C. They denied theguilt and claimed to be tried mainly contending that they have been falselyimplicated. Prosecution examined as many as 10 witnesses and appellants alsoexamined one witness. After appreciating the evidence, Trial Court found Lalpuri Goswami appellant No. 1guilty under Section 304-B of I.P.C. and appellant No. 2 Nanhepuri Goswami under Section 498-A of I.P.C. and sentencedthereto as stated hereinabove in para No. 1 of thejudgment. Being aggrieved by the judgment, finding and sentence passed by TrialCourt the instant appeal has been preferred on thegrounds mentioned in the memo of appeal. 4.Learned counsel for the appellants submitted that Trial Court has notappreciated the evidence in proper perspective. The Trial Court has relied uponthe evidence of interested witnesses without seeking corroboration fromindependent witnesses. It was not proved that she was subjected to cruelty orharassment in connection with demand of dowry. She was suffering fromunbearable abdominal pain therefore, she committed suicide. The fact that soonbefore her death she was subjected to cruelty has not been established. Thereis no evidence against appellant No. 2 Nanhepuri Goswami . The finding of guilt is erroneous which deservesto be set aside and the appellants are entitled for acquittal. 5.On the contrary, Shri Samdarshi Tiwari , learned Govt. Advocate appearing on behalf of respondent/State supported theimpugned judgment finding and sentence mainly contending that there is ampleevidence regarding cruelty and harassment done by appellant No. 1 Lalpuri Goswami to his wife Maltibai Goswami . There is ampleevidence regarding the demand of dowry. The letters written by appellant No. 1 Lalpuri Goswami has been seized.No doctor was examined to prove the fact that Maltibai Goswami was suffered from unbearable abdominal pain.There is ample material on record to connect the appellants to this offence.Prosecution has proved the case beyond reasonable doubt against the appellants,therefore, finding of guilt is proper hence does not call for any interference. 6.The main point for consideration in this appeal is that whether the Trial Courthas committed any illegality in convicting and sentencing the appellant No. 1 Lalpuri Goswami under Section304-B of I.P.C. and appellant No. 2 Nanhepuri Goswami under Section 498-A of I.P.C? 7. 6.The main point for consideration in this appeal is that whether the Trial Courthas committed any illegality in convicting and sentencing the appellant No. 1 Lalpuri Goswami under Section304-B of I.P.C. and appellant No. 2 Nanhepuri Goswami under Section 498-A of I.P.C? 7. Maltibai Goswami wasmarried with Lalpuri Goswami -appellantNo. 1 in the year, 1989 and she died in her in-laws house on 21.02.1992 byhanging. Her postmortem was done by Dr. K.C. Singhai (PW-3) and Dr. J.P. Pasari (PW-7). According to theiropinion, the cause of death was asphyxia due to hanging. Postmortem report is Ex.P/6. 8.Thus, from the material placed on record, it is evidently proved that she diedin the abnormal circumstances within the period of 7 years of her marriage inher in-law’s house and this fact is not disputed by the appellants. 9. Gangapuri (PW-8) is the father of deceased. Kallu Puri (PW-1) and Prakash Puri (PW-9) are herbrothers and Brajrani (PW-2) is her Bhabhi (wife of her elder brother Madan Puri ). These witnesses have unequivocally and in onevoice have deposed that Malti Bai told that her husband Lalpuri Goswani used to drink, abused filthy languages and beat her.He also harassed her by demanding dowry articles such as watch, tape recorder,radio and cash amount also. It has also been brought on record that prior to 21days of this incident he has come to their house in the drunken condition. Healso used filthy languages against his wife Malti Bai and directed them to send her on 12.02.1992. Herbrother Madan Puri left herat Mausipura on 13.02.1992 where appellant No. 1 Lalpuri Goswami was serving andafter a week on 21.02.1992 she died due to hanging. 10.These witnesses have been subjected to lengthy cross examination and somecontradictions and omissions have been brought on record but are not so fatalas to discredit their testimony. 11. Umashankar Yadav (PW-10)has seized some letters Ex.P/7 to Ex.P/9 written by appellant No. 1 - Lalpuri Goswami from Prakash Puri (PW-9) vide seizurememo Ex.P/1. Appellant No. 1 has admitted himself in his statement recordedunder Section 313, Cr.P.C . that these letters werewritten by him. Ex.P/8 is the letter dated 17.01.1990. The language of thisletter is quite threatening in nature and reflects that some dowry was given inthe marriage. Ex.P/9 is the letter dated 12.02.1990 which contains the demandof ring and other articles. Ex.P/7 is the letter dated 23.04.1991 whichcontains the demand of Rs . 3,000/-. that these letters werewritten by him. Ex.P/8 is the letter dated 17.01.1990. The language of thisletter is quite threatening in nature and reflects that some dowry was given inthe marriage. Ex.P/9 is the letter dated 12.02.1990 which contains the demandof ring and other articles. Ex.P/7 is the letter dated 23.04.1991 whichcontains the demand of Rs . 3,000/-. 12.Thus from the evidence of Kallu Puri (PW-1), Brajrani (PW-2), Ganga Puri (PW-8) and Prakash Puri (PW-9) and from the letters Ex.P/7 to Ex.P/9 itclearly reflects that there was demand of dowry articles including cash. Evenfrom the evidence of Malkhan Puri (D W-1) it is proved that cash, utensils, clothes and other articles were givenin the marriage. 13.Thus there is ample evidence that the appellant used to drink, abuse his wife,cause her marpeet , harassed her and demanded dowryarticles. 14.The defence of the appellant is that he wanted moneyin connection with his service because he was temporary at that time and wantedto become permanent employee in the department but no such evidence has beenadduced to show that the amount was required as a loan and not as a dowry. Howthis amount was helpful in making him a permanent employee is beyondcomprehension. 15.Likewise his defence is that some articles were leftat the parental house of his wife for which he demanded but the same has notbeen proved by evidence. It appears that since he has written a letterdemanding ring and other articles, therefore, he is taking this defence which is an after thought. No doubt the photo ofthat girl which he was having has not been seized by the Investigating Officerduring investigation, therefore, could not be produced and brought on recordbut nevertheless there is the ample evidence that he was having such photowhich also affected adversely. 16.The defence that his wife Malti Bai was suffering from severe abdominal pain and,therefore, she committed suicide is also not acceptable for the simple reasonthat no any medical evidence has been adduced to show that she was having suchunbearable pain as to commit suicide. There is no evidence that Malti Bai ever told anybody elsethat she was having such a severe abdominal pain, therefore, this defence is also not acceptable. 17.The irresistible conclusion is that she committed suicide due to crueltypracticed upon her by appellant and harassment made in connection with demandof dowry. There is no evidence that Malti Bai ever told anybody elsethat she was having such a severe abdominal pain, therefore, this defence is also not acceptable. 17.The irresistible conclusion is that she committed suicide due to crueltypracticed upon her by appellant and harassment made in connection with demandof dowry. 18.Learned counsel for the appellant submitted that there is no evidence to theeffect that she was harassed soon before death for demand of dowry. Learnedcounsel has placed reliance on the decisions rendered in the case of State ofAndhra Pradesh vs. Raj Gopal Asawa and Another, AIR 2004 SC 1933 and Balwant Singh and Another vs. State of Punjab, (2004) 7 SCC724. 19.In the case of State of Andhra Pradesh vs. Raj Gopal Asawa (supra) the Apex Court has held thus: “9.Section 113-B of the Evidence Act is also relevant for the case at hand. BothSection 304-B, IPC and Section 113-B of the Evidence Act were inserted as notedearlier by the Dowry Prohibition (Amendment) Act 43 of 1986 with a view tocombat the increasing menace of dowry deaths. Section 113-B reads as follows:- “113-B:Presumption as to dowry death - When the question is whether a person hascommitted the dowry death of a woman and it is shown that soon before her deathsuch woman has been subjected by such person to cruelty or harassment for, orin connection with, any demand for dowry, the Court shall presume that suchperson had caused the dowry death. Explanation- For the purposes of this section ‘dowry death’ shall have the same meaning asin Section 304-B of the Indian Penal Code (45 of 1860).” Thenecessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Reportdated 10th August, 1988 on‘Dowry Deaths and Law Reform’. Keeping in view the impediment in thepre-existing law in securing evidence to prove dowry related deaths,legislature thought it wise to insert a provision relating to presumption ofdowry death on proof of certain essentials. It is in this backgroundpresumptive Section 113-B in the Evidence Act has been inserted. As per thedefinition of ‘dowry death’ in Section 304-B, IPC and the wording in thepresumptive Section 113-B of the Evidence Act, one of the essentialingredients, amongst others, in both the provisions is that the concerned womanmust have been “soon before her death” subjected to cruelty or harassment “forin connection with the demand of dowry”. As per thedefinition of ‘dowry death’ in Section 304-B, IPC and the wording in thepresumptive Section 113-B of the Evidence Act, one of the essentialingredients, amongst others, in both the provisions is that the concerned womanmust have been “soon before her death” subjected to cruelty or harassment “forin connection with the demand of dowry”. Presumption under Section 113-B is apresumption of law. On proof of the essentials mentioned therein, it becomesobligatory on the Court to raise a presumption that the accused caused thedowry death. The presumption shall be raised only on proof of the followingessentials: (1)The question before the Court must be whether the accused has committed thedowry death of a woman. (This means that the presumption can be raised only ifthe accused is being tried for the offence under Section 304-B, IPC). (2)The woman was subjected to cruelty or harassment by her husband or hisrelatives. (3)Such cruelty or harassment was for, or in connection with any demand for dowry. (4)Such cruelty or harassment was soon before her death. 10.A conjoint reading of Section 113-B of the Evidence Act and Section 304-B, IPCshows that there must be material to show that soon before her death the victimwas subjected cruelty or harassment. Prosecution has to rule out thepossibility of a natural or accidental death so as to bring it within thepurview of the ‘death occurring otherwise than in normal circumstances’. Theexpression ‘soon before’ is very relevant where Section 113-B of the EvidenceAct and Section 304-B, IPC are pressed into service. Prosecution is obliged toshow that soon before the occurrence there was cruelty or harassment and onlyin that case presumption operates. Evidence in that regard has to be led byprosecution. ‘Soon before’ is a relative term and it would depend uponcircumstances of each case and no strait-jacket formula can be laid down as towhat would constitute a period of soon before the occurrence. It would behazardous to indicate any fixed period, and that brings in the importance of aproximity test both for the proof of an offence of dowry death as well as forraising a presumption under Section 113-B of the Evidence Act. The expression‘soon before her death’ used in the substantive Section 304-B, IPC and Section113-B of the Evidence Act is present with the idea of proximity test. Nodefinite period has been indicated and the expression ‘soon before’ is notdefined. The expression‘soon before her death’ used in the substantive Section 304-B, IPC and Section113-B of the Evidence Act is present with the idea of proximity test. Nodefinite period has been indicated and the expression ‘soon before’ is notdefined. A reference to expression ‘soon before’ used in Section 114,Illustration (a) of the Evidence Act is relevant. It lays down that a Court maypresume that a man who is in the possession of goods ‘soon after the theft, iseither the thief has received the goods knowing them to be stolen, unless hecan account for his possession. The determination of the period which can comewithin the term ‘soon before’ is left to be determined by the Courts, dependingupon facts and circumstances of each case. Suffice, however, to indicate thatthe expression ‘soon before’ would normally imply that the interval should notbe much between the concerned cruelty or harassment and the death in question.There must be existence of a proximate and live-link between the effects ofcruelty based on dowry demand and the concerned death. If alleged incident ofcruelty is remote in time and has become State enough not to disturb mentalequilibrium of the woman concerned, it would be of no consequence.” 20.In the case of Balwant Singh (supra) the Apex Courthas held that “soon before” is an expression which permits of elasticity, andtherefore the proximity test has to be applied keeping in view the facts andcircumstances of each case. The facts must show the existence of a proximatelive link between the effect of cruelty based on dowry demand and the death ofthe victim. 21.Thus the determination of period which can come within the term ‘soon before’is left to be determined by the Courts, depending upon facts and circumstancesof each case. 22.So far as the present case is concerned, the letters written by appellant No. 1himself reflect regarding the demand of dowry. Moreover, before 21 days of thisincident he himself had gone to Village Patera in thedrunken condition and there also used filthy languages against his wife Malti Bai and directed them tosend her on 12.02.1992 and after 7 days she died in abnormal circumstances inher in-laws’ house. 23.So far as appellant No. 1-Lalpuri Goswami isconcerned, there is ample evidence against him and the Trial Court has notcommitted any illegality in finding him guilty under Section 304-B of I.P.C.The same is hereby affirmed. 23.So far as appellant No. 1-Lalpuri Goswami isconcerned, there is ample evidence against him and the Trial Court has notcommitted any illegality in finding him guilty under Section 304-B of I.P.C.The same is hereby affirmed. 24.So far as the appellant No. 2 Nanhepuri Goswami is concerned, it is evidently clear that he wasresiding separately in his village Amkhiriya whereasthe appellant No. 1 Lalpuri Goswami was separately residing at Mausipura where he wasserving. There is no clinching evidence against him to connect with thisoffence barring one instance that he took Bagri (ornament) from her but this cannot be said that he subjected her to crueltyfor constituting an offence under Section 498-A, I.P.C. There must be willfulconduct of such nature as to drive a woman to commit suicide or to cause graveinjury to lumber of life or harassment with a view to meet any unlawful demandfor any property or any valuable security. Thus all the ingredients requires toprove the offence under Section 498-A, IPC has not been made out and thus theTrial Court has committed illegality in convicting and sentencing him underSection 498-A, IPC, therefore, finding regarding guilt with respect toappellant No. 2 Nanhepuri Goswami is hereby set aside. 25.So far as the conviction of appellant No. 1 Lalpuri Goswami is concerned, learned counsel for the appellantssubmitted that he has suffered 18 months jail sentence, therefore, he bereleased on the period already undergone. But 7 year’s R.I. is minimum sentenceunder Section 304-B, IPC, therefore, the contention of the learned counsel forthe appellants that he be released on the period already undergone is notacceptable. But keeping in view the facts and circumstances of this case, thesentence of 10 years is requires to be reduced to 7 year’s R.I. 26.Consequently, the appeal is partly allowed. The conviction and sentence passedby Trial Court against appellant No. 2-Nanhepuri Goswami under Section 498-A, IPC is hereby set aside. He is acquitted from the chargeunder Section 498-A, IPC. Fine amount, if deposited, be refunded to him. He ison bail. His bail bonds are discharged. He be set atliberty. But the conviction of appellant No. 1-Lalpuri Goswami under Section 304-B, I.P.C. is hereby maintained. However, his sentence isreduced from 10 year’s R.I. to 7 year’s R.I. He is on bail. His bail bonds arecancelled. He be directed to appear before C.J.M., Damoh on 15.09.2008 for serving out the remaining part ofsentence.